[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Constitutions supply political actors with ready-made tools for self-perpetuation. The hope is that with intelligent design ambition can be made to counter ambition once political actors gain access to constitutional office. Yet, there is ample evidence that political actors manage to use constitutional rules to expand their powers beyond the constitutionally envisioned limits way too easily. Well-known practices involve stretching one’s powers through emergency powers and emergency lawmaking powers, as well as judicial reforms leading to court packing. Theories of constitutional insurance attempt to account for the political impact of constitutional design choices.[1] Scholarship on sham or abusive constitutional practices as well as on unconstitutional constitutional amendments has exposed notable strategies of mocking constitutional rules and subverting procedures for political gain.

In recent months the strategic use of no-confidence motions by governing majorities offered important insight into how constitutional procedures enable the power maximization of ruling parties on the sly, between elections. The record suggests that this soft underbelly of modern constitutions provides cozy shelter for political leaders with constitutionally questionable aspirations.

This is in sharp contrast to the standard explanation of the purpose of the no-confidence motion as a tool of parliamentary scrutiny used by the parliamentary opposition to trigger a high-stakes, open debate about the performance of the executive between elections.

In the summer of 2017 the Romanian Prime Minister, Sorin Grindeanu was removed from office by a no-confidence vote initiated by his own Social Democratic Party, the senior member of the governing coalition, after Grindeanu refused to resign. The opposition abstained from the vote in parliament. In January 2018 Grindeanu’s successor, Prime Minister Mihai Tudose decided to resign after he lost an internal party dispute over the removal of two ministers who were under investigation for corruption. It is widely understood that the prime ministers had to leave because their Party’s leader, Liviu Dragnea, was disappointed with their performance. Mr Dragnea himself cannot serve as prime minister due to a suspended prison sentence for attempting to rig a presidential impeachment referendum in 2012. For lack of a better alternative, he currently serves as the speaker of the lower house of parliament. After PM Tudose’s resignation, Dragnea’s Social Democrats got to nominate yet another prime minister, as the President of the Republic was advised to respect the will of the parliamentary majority despite massive demonstrations against government corruption.

The threat of a no-confidence motion in parliament appears to have been a factor in the resignation of President Jacob Zuma of South Africa on Valentine’s Day in 2018. Following a leadership change in the ruling African National Congress in December 2017, as a result of which the ANC’s presidency went to Cyril Ramaphosa from President Zuma (who was barred by a term limit from running), the ANC’s leadership decided to recall Zuma from the presidency of South Africa in early February 2018. As President Zuma was dragging his feet about his resignation from the South African presidency – a move he had no formal legal obligation to take – the ANC’s party leadership, and then its parliamentary caucus threatened him with a no-confidence motion. This happened after an opposition party, the Economic Freedom Fighters, had already tabled one in the National Assembly, in an attempt to interfere with President’s Zuma’s impending State of the National Address scheduled for later in February. The ANC’s decision was a precarious move as it risked compromising the speaker’s constitutional position, had she scheduled the ANC’s no-confidence motion against its own president before the motion submitted much earlier by an opposition party.[2]

Ultimately President Zuma did not wait for the no-confidence vote to take place. While his resignation was a relief (even if in part it must have been inspired by well-timed arrests in a corruption case in which he was personally implicated), it remains the case that the parliamentary debate on his service as president desired by the opposition has not happened. The strategic use of constitutional rules enabled the long-time ruling party of South Africa to rebuild itself under the leadership of its newly elected President Ramaphosa, who is likely to sail the ANC to victory in the next general elections of 2019.

At this point one may add, that a credible threat of a no-confidence vote is still better than learning that parliamentary scrutiny was removed from the cards altogether. A recent political crisis involving Australia’s deputy prime minister accidentally revealed that according to a confidential coalition agreement of 2016, the Prime Minister may remove cabinet ministers from his own Liberal party, but needs permission from the party leader of the junior coalition partner, the Nationals, to remove ministers from the other side. This condition is understood to limit not only the Prime Minister’s political discretion, but ultimately also Parliament’s ability to hold the government accountable.[3]

The Australian incident may be read as a sour reminder about the limited reach of constitutional rules over the realities of party politics. The South African and Romanian cases are lessons about how constitutional rules insulate a political leader from parliamentary (ie. constitutional) scrutiny, essentially enabling party leaders to hold constitutional office holders hostage on terms that are not accessible to outsiders (and especially to voters). Thus, a closer inspection of the soft underbelly of modern constitutions is much overdue if one is to understand how political actors subvert constitutional constraints on their powers. This will require taking a closer look at the operation of some less celebrated constitutional rules, such as means of parliamentary scrutiny.

Thank you for this interesting article. Just to add a comparative example. The 2010 Slovak govt. coalition was toppled by its own MPs in a vote on the EFSF rescue fund. The vote was made a “vote of confidence” on the govt. and the opposition at the time left the chamber or did not vote.

Also, when a vote originates from the govt. ranks it is a vote of confidence and when from the opposition a vote of no-confidence. Does the Hungarian Constitution differentiate between the two?

In terms of terminology: most constitutions I know distinguish between a confidence vote (started by the government / Prime Minister) and a no-confidence one (also known as a motion of censure, started by MPs). Of course constitutions do not say explicitly that the latter can be started solely by MPs from the opposition, but the whole no-confidence (censure) mechanism is understood to serve this purpose. See the quote form the South African Constitutional Court’s judgment from the summer of 2017 to this effect in the post.

The 2011 Slovak EFSF vote was called by a freshly elected PM of a coalition government. PM Iveta Radicova made the EFSF issue a matter of confidence – and lost due to the junior coalition partner’s objection, while the opposition abstained during the vote. Trying to “blackmail” the parliamentary majority to do something unpalatable through a confidence vote is a pretty standard application of this measure – not a misuse. Being held hostage by the junior coalition partner is the type of scenario that the Cameron government in the UK wanted to avoid when they made Parliament pass the Fixed-term Parliaments Act in 2011. In a class move, the bill was tabled by the LibDems (i.e. the junior coalition partner).

In the cases I wrote about the majority party’s MPs are prompted to use a no-confidence vote by their party leader who does not hold the kind of constitutional office that would enable him to topple the PM or president of the majority party. This is a way for party leaders to take advantage of a constitutional mechanism meant to enhance parliamentary scrutiny in order settle an intra-party conflict by means that the party leaders otherwise do not have at their disposal inside the party. And they can take advantage of this mechanism even when the opposition abstains from the vote; they essentially conduct internal party business through the infrastructure of parliament.

What distinguishes this scenario from a German Chancellor mocking the loss of a confidence vote a la Chancellor Schröder is that the German mockery (while clearly a mockery) used to trigger early national elections (ie the ultimate scrutiny over the government), while the examples in the post shielded the cabinet and the strong men of the party behind it from accountability mechanisms.

Note that in order to make the story of the South African no-confidence threat palatable for posterity, Cyrill Ramaphosa had to be elected as president of South Africa by the National Assembly after President Zuma’s resignation. Imagine if Ramaphosa (the duly elected president of the ANC) had lost the subsequent election for president in the National Assembly, due to discord within the ANC caucus … While this is a counterfactual, in reality the opposition Democratic Alliance and the Economic Freedom Fighters would have preferred the dissolution of the National Assembly and early elections as a follow up measure to President Zuma’s resignation, instead of the election of a new President by the sitting National Assembly.

All in all: the political uses of confidence and no-confidence votes appear to be worthy of a closer look — as they create unmatched opportunities for party leaders to reinforce their political power positions without any meaningful external accountability mechanism over them.

I see, thank you for the clarification. The episode would fit your description if ex-PM Dzuridna (party leader and Foreign Minister at the time) used the confidence vote to force PM Radičová (party No.2) out of office.

I just realised that a similar provision prohibiting the PM to sack a coalition minister without the agreement of the respective junior partner (on a treat of loss of support) was added to the coalition agreement in Slovakia last year.

I submitted an information request to the govt. so that I can check for my self. There are only some reports on this, and the agreement is not accessible on the webpage of the govt. However, the idea that a coalition agreement may be aimed at disabling certain constitutional rules is interesting.

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